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Obama 2nd Term Promises Slew of Regulatory Actions from OSHA

The outcome of the 2012 election largely maintained the status quo in Washington, D.C.

According to experts and stakeholders, however, President Barack Obama’s re-election may embolden the Occupational Safety and Health Administration (OSHA) to pursue its regulatory and enforcement agenda with more vigor than it did in the first term.

“I see a much more active OSHA on the regulatory front in President Obama’s second term,” said Brad Hammock, chair of the Workplace Safety & Health Practice Group at law firm Jackson Lewis, based in Reston, Va.

Ed Foulke, a partner in labor and employment law firm Fisher & Phillips’ Atlanta office, said “You’re seeing less emphasis from compliance assistance programs like [the Voluntary Protection Program] and more enforcement.” Foulke, the former OSHA chief under George W. Bush, told SHRM Online to expect a more aggressive OSHA in the next four years.

Others agreed that employers should continue to expect more scrutiny from OSHA.

“There is no question that OSHA will continue to believe in enforcement as the answer to improving workplace safety, and I expect that they will look for ways to create higher penalties and issue more citations,” said Marc Freedman, executive director of Labor Law Policy for the U.S. Chamber of Commerce.

Amanda Wood, the director of Labor and Employment Policy at the National Association of Manufacturers (NAM), warned that some employers may experience more inspections and citations than others. “There is uncertainty among employers as to the uniformity of the enforcement and we anticipate this uncertainty to continue,” she told SHRM Online.

“We anticipate continued use of emphasis programs in targeted industries, ‘regulation by shaming’ press releases and more employers in the Severe Violator Enforcement Program,” said Sean Thurman, director of legislative affairs for Associated Builders and Contractors. “In addition, OSHA will likely exchange information with other Labor Department sub-agencies, most notably the Wage and Hour Division, to maximize their enforcement efforts across the board,” Thurman told SHRM Online.

First Term Marked by Delay, Gridlock

OSHA under the Obama administration’s first term did not finalize many regulations. Most of what has been issued originated before Obama took office: the cranes and derricks rules, general working conditions for shipyards, and finalizing a hazard communication standard.

This regulatory sluggishness has prompted criticism from safety advocates like Rick Pollock, president of the American Society of Safety Engineers.

“Over the last two years, any occupational safety standard or policy change has been put on the back burner of the political stove,” Pollock told SHRM Online. “In the meantime, OSHA has increased their enforcement efforts to hold employers as accountable as they can without OSH [Occupational Safety and Health] Act reform in Congress,” he said.

“I have been amazed at how, during the last four years, several OSHA rulemaking initiatives have been stalled in the Office of Management and Budget (OMB),” Hammock said. “It has really been unprecedented.”

Workplace safety policy has been driven by the executive branch, rather than Congress, during President Obama’s first term. When legislation to increase employer penalties for violations of the OSH Act was stalled in Congress, Assistant Secretary for Occupational Safety and Health David Michaels reformulated how penalties were calculated, doubling the average fine levied.

Fundamental changes to the OSH Act are not likely in the second term either, said Foulke, citing the same gridlocked majorities that existed in the House and Senate before the election.

In 2010, OSHA revamped its Severe Violator Enforcement Program targeting employers who willfully ignore safety rules. New policies call for inspectors to take a closer look at employer practices and conduct more mandatory inspections of their worksites. OSHA asked for increased funding for enforcement activities, and hired additional safety inspectors.

OSHA’s budget increased early in Obama’s first term, said Eric Conn, head of Epstein, Becker, Green’s national OSHA Practice Group based in Washington, D.C. That allowed OSHA to hire more than 100 new compliance officers. The agency also redirected most of the resources and personnel that had been involved formerly in compliance assistance and cooperative programs into enforcement, he said. “As a result, the number of inspections increased from averages in the mid-30,000s during the Bush Administration to around 40,000 late in Obama’s first term. That trend will continue,” Conn added.

OSHA pursued a variety of rulemakings during President Obama’s first term, such as for combustible dust, silica, and the Injury and Illness Prevention Program rule, which Michaels considers his No. 1 priority. Many of these proposals have missed numerous deadlines laid out in consecutive regulatory agendas, however, and some were shelved altogether, including a rulemaking that would have required engineering controls for noise exposure reduction, and an OSHA-proposed rule change to add a musculoskeletal disorders column to employers’ Form 300 logs.

Peg Seminario, director for safety and health for the AFL-CIO, said she believed that OSHA would continue moving forward on issuing stronger regulations and making progress on developing new rules, however slow the process evolved.

“I’m very concerned that the rulemaking process is being delayed,” she told SHRM Online.

“But I hope we’re going to see some movement because right now we’re not seeing any.”

Regulatory Actions in the Pipeline

Despite the delay, OSHA will continue to work on an ambitious rulemaking agenda.

Injury and Illness Prevention Program. The most sweeping anticipated rule is a proposal requiring employers to implement an injury and illness prevention program (I2P2). This rule would require employers to “find and fix” all hazards at their worksites, regardless of whether there is a specific OSHA standard. Effectively, it is a catch-all safety and health standard that may create conflict at a number of workplaces.

“I2P2 is the obvious elephant in the room,” said Freedman. “David Michaels has been abundantly clear he wants to move on this and we should expect them to proceed with the small business review.”

OSHA’s I2P2 rule is a regulatory priority that has been under development for almost three years. During the last several months, OSHA hinted it is ready to begin the Small Business Regulatory Enforcement Fairness Act process for the rule, whereby the agency would solicit input on the rule from affected small business entities.

“The I2P2 standard, if done well, could begin a process to transform OSHA from a prescriptive to a risk-based regulatory approach that would align with regulatory approaches employers are already meeting across the globe,” ASSE’s Pollock told SHRM Online.

“I anticipate some movement with I2P2, but that rule is not as far along in the process and may ultimately be too big to accomplish in a second term,” Hammock said.

Crystalline Silica. Employers should stay tuned for OSHA’s rulemaking to comprehensively regulate crystalline silica. “Assuming previous regulatory delays were political and not a result of systematic issues with the specific proposal, look for a proposed rule on silica exposure,” Thurman told SHRM Online. “The proposal is essentially completed and it can be published in short order,” Hammock said. The comprehensive regulation of crystalline silica is perhaps the most significant rulemaking for the construction industry, given how common crystalline silica is on jobsites. OSHA’s draft proposed regulatory text for the rule, which was published in 2002, considered lowering the permissible exposure limit for the substance; implementing extensive “housekeeping” requirements, including prohibiting dry sweeping; requiring exposure monitoring and the establishment of regulated areas; and imposing medical surveillance obligations. The proposed regulation is still under review by the OMB, where it was first submitted in February 2011. Despite the delay, this initiative should be watched closely, Hammock said.

Injury and Illness Reporting. OSHA would like to propose expanding reporting requirements for serious injuries and revising the list of industries exempt from injury and illness recordkeeping requirements. OSHA has proposed to transition the classification of industries from Standard Industrial Classification codes to North American Industry Classification System codes. As a result of the proposed update, tens of thousands of previously exempt employers would be required to keep logs of work-related injuries and illnesses.

“The change in codes seems to be a no-brainer,” Foulke said. “It makes more sense to go to a more-detailed breakout of what companies can be included. However, there will be a number of industries that are currently exempt that will be mandated to report the 300 logs every year,” he said.

OSHA also is planning to change requirements for the types of incidents that have to be reported to the agency. Currently, OSHA requires that employers call the agency within eight hours of the incident and report any fatality, as well as the hospitalization of three or more employees. OSHA is proposing to change the requirement to one or more employees, as well as add a requirement to report work-related amputations within 24 hours. “I won’t be surprised if OSHA moves this way, but the number of inspections based on this reporting by employers will jump exponentially because of it,” Foulke said.

Possible Final Rules Slated for 2013

The agency has been developing several other standards, which could be finalized as early as 2013. “There are a number of regulations that I signed off on before I left OSHA that still haven’t come out,” said Foulke, who led the agency from 2006 to 2008. These include:

Confined Spaces in Construction. This standard, proposed in 2007, is designed to bring the construction industry the same level of protection from confined space hazards that exists in general industry, but in a way that is more tailored to construction work.

Walking Working Surfaces. Proposed revisions will include specific criteria for personal fall protection equipment that are consistent with industry voluntary consensus standards.

“Other rulemakings that are likely to move forward at a faster clip include a combustible dust standard and amendments to many of OSHA’s current Permissible Exposure Levels associated with specific regulated chemicals,” Conn said.

“Of course, we have no way of knowing for sure what OSHA will finalize, because OSHA has not released a regulatory agenda for nearly a year,” Thurman said. “It’s a procedural thing, but the regulatory agenda really is the only way OSHA and other agencies inform the public about what it plans to do. Businesses and other stakeholders are largely flying blind,” he said.

Hazard Communication Compliance Begins

Employers must ensure, also, that they are in full compliance with the one major final rule OSHA implemented in 2012: an update of the hazard communication standard to align it with the Globally Harmonized System of Classification and Labeling of Chemicals (GHS). The GHS final rule affects significantly any U.S. employer that uses hazardous chemicals in the workplace. By December 2013, employers covered by the hazard communication standard must have trained employees on the new hazard classifications, labels and safety data sheets required by the revised standard.

Whistle-Blower Enforcement to Continue

Recently, OSHA announced the formation of a Whistleblower Protection Advisory Committee.

NAM’s Wood said her organization is curious to see what the newly established committee will focus on in the coming year. “We are very supportive of individuals coming forward to report issues or concerns, so employees have the safest workplace,” she said.

The statutory expansion of whistle-blower protections under the Dodd-Frank Act has given OSHA—the agency charged with enforcing the whistle-blower protection provisions of 21 statutes—more area to cover. “The trend at OSHA for more aggressive whistle-blower enforcement will continue in the second term,” Hammock said.

The U.S. Department of Labor’s proposed budget for fiscal year 2013 would allocate an additional $5 million over last year’s OSHA funding specifically for its whistle-blower programs.

In addition, “The scope of whistle-blower protection will almost certainly grow,” said Conn. “The agency recovers huge dollar amounts through whistle-blower actions, especially in comparison to the relatively low civil penalties OSHA brings in through traditional safety and health enforcement,” he added. Foulke also noted that federal OSHA is currently putting the heat on state OSH plans’ whistle-blower enforcement by questioning state regulators’ low rates in finding cause for action in whistle-blower cases.